Living Wage

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Berkeley Labor Commission

DRAFT -- MINIMUM WAGE

Chapter 13.99 Sections:

13.99.010 Title and Purpose.
13.99.020 Authority.
13.99.030 Definitions.
13.99.040 Minimum Wage.
13.99.045 Paid Sick Leave
13.99.050 Waiver Through Collective Bargaining.
13.99.060 Notice, Posting and Payroll Records.
13.99.070 Retaliation Prohibited.
13.99.080 Implementation.
13.99.090 Enforcement.
13.99.100 Relationship to Other Requirements.
13.99.110 Application Of Minimum Wage To Welfare-To-Work Programs.
13.99.120 Fees.
13.99.130 Exemptions.
13.99.010 Title and Purpose.

This ordinance shall be known as the "Minimum Wage Ordinance."

The purpose of this ordinance is to protect the public health, safety and welfare. It does this by requiring that Employees are compensated by their Employers or respective subcontractors in such a manner as to enable and facilitate their individual self-reliance within the City of Berkeley.

(Ord. 7352-NS § 1 (part), 2014)

13.99.020 Authority.

This Chapter is adopted pursuant to the powers vested in the City of Berkeley under the laws and Constitution of the State of California but not limited to, the police powers vested in the City pursuant to Article XI, Section 7 of the California Constitution and Section 1205(b) of the California Labor Law. (Ord. 7352-NS § 1 (part), 2014)

13.99.030 Definitions.

The following terms shall have the following meanings:

A. "City" shall mean the City of Berkeley.

B. "Department" shall mean the Department of Finance or other City department or agency as the City shall by resolution designate.

C. "Employee" shall mean any person who:

1. In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City; and

2. Qualifies as an Employee entitled to payment of a minimum wage from any Employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.

D. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency, subcontractor Commission on Labor Agenda or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee, or any person receiving or holding a business license through Title 9 of the Berkeley Municipal Code.

E. "Minimum Wage" shall have the meaning set forth in Section 13.99.040 of this Chapter.

F. "Nonprofit Corporation" shall mean a nonprofit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains valid nonprofit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section, or any non-profit educational organization qualified under Section 23701 (d) of the Revenue and Taxation code.

G. "Paid Sick Leave" shall mean paid "sick leave" as defined in California Labor Code § 233(b)(4) as followed: “"Sick leave" means accrued increments of compensated leave provided by an Employer to an Employee as a benefit of the employment for use by the Employee during an absence from the employment for any of the following reasons: (A) The Employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition of the Employee. (B) The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the Employee. (C) The absence is for other medical reasons of the Employee, such as pregnancy or obtaining a physical examination. "Sick leave" does not include any benefit provided under an Employee welfare benefit plan subject to the federal Employee Retirement Income Security Act of 1974 (Public Law 93-406, as amended) and does not include any insurance benefit, workers' compensation benefit, unemployment compensation disability benefit, or benefit not payable from the Employer's general assets”, except that the definition here extends beyond the Employee's own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an Employee for the purpose of providing care or assistance to other persons, as specified further in Section B, subsection (1) , with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.

H. "Small business" shall mean an Employer for which fewer than ten persons work for compensation during a given week. In determining the number of persons performing work for an Employer during a given week, all persons performing work for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity.

I. "Service Charge" means all separately-designated amounts collected by an Employer from customers that are described in such a way that customers might reasonably believe that the amounts are for Employees or services rendered by Employees, including but not limited to those charges designated on receipts under the term "service charge," "automatic gratuity charge,", "table charge, " "delivery charge," or "porterage charge."

13.99.040 Minimum Wage.

A. Employers shall pay Employees no less than the Minimum Wage set forth below for each hour worked within the geographic boundaries of the City.

Date Minimum Hourly

Wage

October 1, 2014 $10.00
October 1, 2015 $11.00
October 1, 2016 $13.00
October 1, 2017 $14.50
October 1, 2018 $16.00
October 1, 2019 $17.50
October 1, 2020 $19.00

B. For Employers that are Nonprofit Corporations, the requirements of this Chapter shall not take effect until October 1, 2015, at which time the minimum wage will be $11.00 per hour.

C. A violation for unlawfully failing to pay the Minimum Wage shall be deemed to continue from the date immediately following the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date immediately preceding the date the wages are paid in full. (Ord. 7352-NS § 1 (part), 2014)

D. Cost of Living Adjustment. To prevent inflation from eroding its value, beginning on October 1, 2021, and each year thereafter, the Minimum Wage shall increase by an amount corresponding to the prior year's increase, if any, in the cost of living. The prior year's increase in the cost of living shall be measured by the percentage increase, if any, from April 1 of the immediately preceding year to April 1 of the previous year of the Consumer Price Index for urban wage earners and clerical workers for the San Francisco-Oakland-San Jose CA metropolitan statistical area, as published in April of each year by the U.S. Department of Labor, Bureau of Labor Statistics. The adjusted Minimum Wage for all Employers shall be announced by May 1 of each year, and shall become effective as the new minimum wage on October 1 of that year.

E. Distribution of Service Charges

1. Service Charges shall not be retained by the Employer but shall be paid over in their entirety, in the form of hourly wages above the minimum or other non-mandatory benefits or forms of compensation, to the Employees performing services for the customers from whom Service Charges are to be collected. No part of these charges may be paid to Employers or supervisors except for any portion of their work time spent on nonsupervisory work serving these customers, and then at no higher rate of compensation than the average of what is paid other Employees performing similar customer service. The Service Charges shall be distributed to the Employees not later than the next payroll following the work or collection of the charge from the customer, whichever is later. Without limitation of the foregoing:

a. Service charges collected for banquets or catered meetings shall be paid to the Employees who actually work the banquet or catered meeting;

b. Service charges collected for room service shall be paid to the Employees who actually deliver food and beverage associated with the charge; and

c. Service charges collected for porterage service shall be paid to the Employees who actually carry the baggage associated with the charge.

2. This section does not apply to any tip, gratuity, money, or part of any tip, gratuity, or money that has been voluntarily paid or given to or left for an Employee by customers over and above the actual amount due for services rendered or for goods, food, drink, or articles sold or served to the customer. No part of this chapter shall be construed to limit or prohibit the amount of any tip or gratuity left for an Employee.

3. No Employer or agent thereof shall deduct any amount from wages due an Employee on account of a Service Charge, or require an Employee to credit the amount, or any part thereof, of a Service Charge against and as a part of the wages due the Employee from the Employer.

4. Each Employer shall disclose in writing to each employee its plan of distribution of service charges to employees and shall report to employees on each payroll date on the amount of service charges collected and amounts distributed to employees for the pay period in question. Nothing in this chapter shall be construed to limit an employer’s discretion to include all of their Employees performing non-supervisory work in this plan of distribution.

5. This Section shall not be applied to any events for which the employer already had a contract in place at the time the employer received notice of the proposed ordinance giving rise to this Section from which service charge revenues would be retained by the employer.

13.99.045 Paid Sick Leave

A. Accrual of Paid Sick Leave.

1. Employees shall begin to accrue Paid Sick Leave on October 1, 2016, or at the commencement of employment with the Employer, whichever is later.

2. For every 30 hours worked after Paid Sick Leave begins to accrue for an Employee, the Employee shall accrue one hour of Paid Sick Leave. Such leave shall accrue only in hour-unit increments; there shall be no accrual of a fraction of an hour of such leave.

3. For Employees of Small Businesses, there shall be a cap of 40 hours of accrued Paid Sick Leave. For Employees of other Employers, there shall be a cap of 72 hours of accrued Paid Sick Leave. Accrued Paid Sick Leave for Employees carries over from year to year (whether calendar year or fiscal year), but is limited to the aforementioned cap.

4. An Employer is not required to provide financial or other reimbursement to an Employee upon the Employee's termination, resignation, retirement, or other separation from employment, for accrued Paid Sick Leave that the Employee has not used.

5. The rate of pay shall be the Employee’s hourly wage. If the Employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried Employee, then the rate of pay shall be calculated by dividing the Employee’s total wages, not including overtime premium pay, by the Employee’s total hours worked in the full pay periods of the prior 90 days of employment.

B. Use of Paid Sick Leave.

1. An Employee may begin using Paid Sick Leave 90 calendar days after commencement of employment.

2. An Employee may use Paid Sick Leave not only when he or she is ill or injured or for the purpose of the Employee's receiving medical care, treatment, or diagnosis, as specified more fully in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis: Child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person. The Employee may use all or any percentage of his or her Paid Sick Leave to aid or care for the aforementioned persons. The aforementioned child, parent, sibling, grandparent, and grandchild relationships include not only biological relationships but also relationships resulting from adoption; step-relationships; and foster care relationships. "Child" includes a child of a domestic partner and a child of a person standing in loco parentis.

3. An Employer may not require, as a condition of an Employee's taking Paid Sick Leave, that the Employee search for or find a replacement worker to cover the hours during which the Employee is on Paid Sick Leave.

4. If the need for paid sick leave is foreseeable, the Employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the Employee shall provide notice of the need for the leave as soon as practicable.

5. An Employer may lend paid sick days to an Employee in advance of accrual, at the Employer’s discretion and with proper documentation.

6. If an Employee’s use of Paid Sick Leave extends beyond 48 consecutive hours, an Employer may request verification that an Employee’s use of Paid Sick Leave is lawful. An Employer may only take reasonable measures to verify or document that an Employee's use of

Paid Sick Leave is lawful, and shall not require an Employee to incur expenses in excess of $5 in order to show his or her eligibility for such paid leave.

7. An Employer may not require that the documentation explain the nature of the illness or the details of the use of the Paid Sick Leave.

8. The Employer shall not delay the taking of earned sick time or delay pay for the period in which earned sick time was taken for Employees entitled to pay under Section 40, Subsection A, on the basis that the Employer has not yet received the certification.

9. An Employer shall provide payment for sick leave taken by an Employee no later than the payday for the next regular payroll period after the sick leave was taken.

10. It shall be unlawful for any Employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under or in connection with this section, including, but not limited to, by using the taking of earned sick time under this section as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an Employee to discipline for the use of earned sick time under this section

11. Employers who provide their Employees paid time off under a paid time off, vacation or other paid leave policy who make available an amount of paid time off sufficient to meet the accrual requirements of section A that may be used for the same purposes and under the same conditions as earned paid sick time under this section are not required by this Chapter to provide additional earned paid sick time.

13.99.050 Waiver Through Collective Bargaining.

To the extent required or allowed by federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms. (Ord. 7352-NS § 1 (part), 2014)

13.99.060 Notice, Posting and Payroll Records.

A. By August 1 of each year, the Department shall publish and make available to Employers a bulletin announcing the adjusted Minimum Wage rate, which shall take effect on October 1 of that year. In conjunction with this bulletin, the Department shall by August 1 of each year publish and make available to Employers, in all languages spoken by more than five percent of the work force in the City, a notice suitable for posting by Employers in the workplace informing Employees of the current Minimum Wage rate and of their rights under this Chapter.

B. Every Employer shall post in a conspicuous place at any workplace or job site in the City where any Employee works the notice published each year by the Department informing Employees of the current Minimum Wage rate and of their rights under this Chapter, including Paid Sick Leave. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the work-place or job site. In instances where an Employee does not have a regular physical location where they perform their work, the Employer shall provide a copy of the MWO public notice to the Employee when they are hired or assigned to complete work within the City of Berkeley. The notice shall be provided to the employee before they commence work within the city limits and must be provided in the language most easily comprehended by the Employee. Every Employer shall also provide each Employee at the time of hire with the Employer’s name, address, and telephone number in writing. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter.

C. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting wages paid or does not allow the City reasonable access to such records, the Employee’s account of how much he or she was paid shall be presumed to be accurate, absent clear and convincing evidence otherwise. Furthermore, failure to maintain such records or to allow the City reasonable access shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter. Such records shall include the amount of hours worked, wages paid, and Paid Sick Leave accrued.

D. If a violation of this Chapter has been finally determined, the City shall require the Employer to post public notice of the Employer’s failure to comply in a form determined by the City. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter. (Ord. 7352-NS § 1 (part), 2014)

E. Reporting of Paid Sick Leave. Employers shall include the number of hours of Paid Sick Leave accrued to date in such records that they provide to Employees at the end of each pay period. Failure to provide such records shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter.

F. Reporting of Service Charges. Every Employer shall post a notice in a conspicuous place at any workplace or job site in the City where any Employee works explaining how Service Charges are distributed among Employees. Employers shall report the amount of money collected as Service Charges to Employees no later than the end of the pay period when they were collected. In order to ensure that the distribution of Service Charges is lawful, Employers shall, upon request by an Employee, make available their records of sales and associated Service Charges in a given pay period

13.99.070 Retaliation Prohibited.

A. It shall be unlawful for an Employer or any other party to discriminate in any manner or take any adverse action (including action relating to any term, condition or privilege of employment) against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party’s alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter or otherwise educate any person about this Chapter or to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person’s exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. Failure to comply with this provision shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter. (Ord. 7352-NS § 1 (part), 2014)

B. No Employer may fund increases in compensation required by this Chapter, nor otherwise respond to the requirements of this Chapter, by reducing the compensation of any nonmanagement employees nor by reducing the pension, vacation, or other non-wage benefits of any such employees, nor by increasing charges to them for parking, meals, uniforms or other items. If an employer makes such adverse changes after receiving notice of the proposed ordinance giving rise to this Section, then upon the effective date of this Section such employer shall restore the conditions of the status quo ante.

13.99.080 Implementation.

A. Guidelines. The Department shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. The Department shall seek out partnerships with community-based organizations and collaborate with the Labor Commission to facilitate effective implementation and enforcement of this Chapter. Any guidelines or rules promulgated by the Department shall have the force and effect of law and may be relied on by Employers, Employees and other parties to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform Employees of their rights under this Chapter, for monitoring Employer compliance with this Chapter, and for providing administrative hearings to determine whether an Employer or other person has violated the requirements of this Chapter.

B. Reporting Violations. An Employee or any other person may report to the Department in writing any suspected violation of this Chapter. The Department shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Department may disclose his or her name and identifying information as necessary to enforce this Chapter or other Employee protection laws. In order to further encourage reporting by Employees, if the Department notifies an Employer that the Department is investigating a complaint, the Department shall require the Employer to post or otherwise notify its Employees that the Department is conducting an investigation, using a form provided by the Department. Failure to post such notice shall render the Employer subject to administrative citation, pursuant to Section 90, Subsection A, of this Chapter.

C. Investigation. The Department shall be responsible for investigating any possible violations of this Chapter by an Employer or other person. The Department shall have the authority to inspect workplaces, interview persons and request the City Attorney to subpoena books, papers, records, or other items relevant to the enforcement of this Chapter.

D. Informal Resolution. The Department shall make every effort to resolve complaints informally, in a timely manner, and shall have a policy that the Department shall take no more than six months to resolve any matter, before initiating an enforcement action. The failure of the Department to meet these timelines within six months shall not be grounds for closure or dismissal of the complaint. (Ord. 7352-NS § 1 (part), 2014)

13.99.090 Enforcement.

A. Where prompt compliance is not forthcoming, the City and the Department shall take any appropriate enforcement action to secure compliance, including but not limited to the following:

1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of the Berkeley Municipal Code. The amount of this fine shall vary based on the provision of this Chapter being violated, as specified below:

a. A fine of one thousand dollars ($1,000.00) may be assessed for retaliation by an Employer against an Employee for exercising rights protected under this Chapter for each Employee retaliated against.

b. A fine of five hundred dollars ($500.00) may be assessed for any of the following violations of this Chapter:

i. Failure to post notice of the Minimum Wage rate
ii. Failure to provide notice of investigation to Employees
iii. Failure to post notice of violation to public
iv. Failure to maintain payroll records for four years
v. Failure to allow the City access to payroll records
vi. Failure to provide record of accrued Paid Sick Leave to Employees
vii. Failure to provide record of the amount and distribution of collected

Service Charges to Employees

c. A fine equal to the total amount of appropriate remedies, pursuant to subsection E of this section. Any and all money collected in this way that is the rightful property of an Employee, such as back wages, interest, and civil penalty payments, shall be disbursed by the City in a prompt manner.

2. Alternatively, the City may pursue administrative remedies in accordance with the following procedures:

a. Whenever the City determines that a violation of any provision of this Chapter is occurring or has occurred, the City may issue a written compliance order to the Employer responsible for the violation.

b. A compliance order issued pursuant to this chapter shall contain the following information:

i. The date and location of the violation;
ii. A description of the violation;
iii. The actions required to correct the violation;
iv. The time period after which administrative penalties will begin to

accrue if compliance with the order has not been achieved;

v. Either a copy of this Chapter or an explanation of the consequences of

noncompliance with this Chapter and a description of the hearing procedure and appeal process;

vi. A warning that the compliance order shall become final unless a

written request for hearing before the City is received within fourteen days of receipt of the compliance order.

c. Following receipt of a timely request for a hearing, the City shall provide the Employer responsible for the violation with a hearing and, if necessary, a subsequent appeal to the City Council that affords the Employer due process. During the pendency of the hearing and any subsequent appellate process, the City will not enforce any aspect of the compliance order.

3. The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

B. The City or Aany person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the employee and all other employees affected by the employer’s violations or on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys’ fees and costs expenses and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees and costs.

C. This Section shall not be construed to limit an Employee’s right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

D. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied. The City shall not renew any such license of an Employer with outstanding violations, as finally determined under this Chapter, until such time as the violation is remedied.

E. The remedies for violation of this Chapter include but are not limited to:

1. Reinstatement, the payment of back wages unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

3. Reimbursement of the City’s administrative costs of enforcement and reasonable attorney’s fees.

4. If a repeated violation of this Chapter has been finally determined, the City may require the Employer to pay an additional sum as a civil penalty in the amount of $50 to the City for each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

F. The remedies, penalties and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures established by law which may be pursued to address violations of this Chapter. Actions taken pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered. (Ord. 7352-NS § 1 (part), 2014)

13.99.100 Relationship to Other Requirements.

This Chapter provides for payment of a local Minimum Wage and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections. (Ord. 7352-NS § 1 (part), 2014)

13.99.110 Application Of Minimum Wage To Welfare-To-Work Programs.

The Minimum Wage established under this Chapter shall apply to the Welfare-to-Work programs under which persons must perform work in exchange for receipt of benefits. Participants in Welfare-to-Work Programs within the City of Berkeley shall not, during a given benefits period, be required to work more than a number of hours equal to the value of all cash benefits received during that period, divided by the Minimum Wage. (Ord. 7352-NS § 1 (part), 2014)

13.99.120 Fees.

Nothing herein shall preclude the City Council from imposing a cost recovery fee on all Employers to pay the cost of administering this Chapter. (Ord. 7352-NS § 1 (part), 2014) 13.99.130 Exemptions.

The requirements of Section 40, Subsection A of this chapter shall not apply to the following Employees:

1. Employees who are standing by or on-call according to the criteria established by the Fair Labor Standards Act, 29 U.S.C. Section 201. This exemption shall apply only during the time when the Employee is actually standing by or on-call.

2. Job training program participants up to 25 years of age in temporary youth job training programs operated by Nonprofit Corporations or governmental agencies. This exemption shall not apply to participants that work an excess of 1040 hours in the program within a consecutive 365 day period. (Ord. 7352-NS § 1 (part), 2014)

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